May 24, 2007

Doing Mashups with Walt and George

How do you think Donald Duck would sound doing the
Gettysburg Address? The genie from Aladdin reciting the Bill of Rights? Perhaps
your tastes run in a different direction. George Bush channeling Bono? Tony
Blair contemplating his
future courtesy of the Clash? Perhaps Elmer Fudd singing opera (oh wait,
that’s already been done and classically so)?

This is all doable. What we really need is a grand database
of video snippets—a database of what a telecommunications lawyer would call unbundled
video elements (“UVEs”). The Wall Street
Journal reported today that George Lucas is taking a step in this direction
by releasing 250 clips tomorrow in honor of the 30th anniversary of the
original film. (Commentary here
and here.)

How would we use such a database? Eric Faden, a media
professor at Bucknell, has given us a glimpse of this in his recent video “A Fair(y) Use Tale.”
What do we learn?

Start with our database. This would contain relevant
cultural artifacts—Disney? All Jack Nicholson films?—indexed word by word. Type
in a text and the database would offer choices of UVEs. Press a few buttons and
your mashup would be ready for viewing and distribution.

Look at the Faden film. Faden wrote a script that provides a
description of United States copyright law. My guess is that it is no more than
a 1000-word blog post. Rather than post it as a text, or even reciting it is a
podcast, Faden has Disneyfied it. For each word in the script, Faden found a
corresponding voice and video clip from a Disney work. Absent my suggested UVE
database, this was undoubtedly an enormous amount of work; with it, it would be
a trivial exercise.

We need to assess the value added from the marriage of
content and video. I found both the George Bush and Tony Blair mashups funny
and interesting. The Blair mashup captured his indecisiveness over when to walk
away from 10 Downing St, and the Clash song “Should I Stay or Should I Go?” matched
that perfectly. The Bush/U2 mashup is obviously commentary on the Iraq war.

Note that if we are going to do copyright for a moment,
neither of these is a work that would obviously meet the parody standard that
we see in cases like Campbell v. Acuff-Rose
(the Roy Orbison/2 Live Crew case). The heart of parody is to invoke the
copyrighted work to criticize it. In each of these mashups, I think we are
seeing general social commentary rather than criticism of the underlying
copyrighted works (which would include the musical compositions, the sound
recordings, and the transmissions of the Blair and Bush speeches).

For a Fair(y) Tale, using the Disney videos is a clever way
of gaining attention for the work, though the courts have been critical of
merely using works to get attention. No individual Disney work is criticized. The
criticism directed at Disney turns much more on contested issues about the
appropriate scope of copyright, where Disney has been a leader in pushing for
extensions of copyright.

Those videos are not essential for the work to exist,
indeed, the work itself is limited by what is available in the UVE database.
Faden seemingly was unable to find the use of the word “copyright” itself in a
Disney work, and so has to construct the word from two separate video clips for
the word “copy” and the word “right.” That creates a certain awkwardness in
Faden’s work, plus if I have to listen to Buzz Lightyear say the word copy one
more time, I’ll go sign up with Zurg.

This is ultimately about how stories are told and what
limits copyright will place on that story-telling. Under fair use, we will
proceed case by case and that may not be a bad thing as we start to move beyond
parodic use to broader story-telling use.

Comments

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Don't you think part of the problem here is the simple lack of precedent? It seems to me you could make an awfully strong case that the Faden video is a transformative use. While in the aggregate, he used about 10 minutes of footage, I don't think any one segment is more than a couple of seconds long. But Disney's smart enough not to sue in a case like this where there'd be a high probability of setting an unfavorable precedent. So there's a big grey area in the law: there are lots of uses that most people think are probably fair use, but that's not enough certainty to build a business on, so such activities remain in the fringes.

I'm not sure what the solution is. I'm always skeptical about having Congress get involved, I imagine that at some point, a mashed-up video work will become a big enough success that the relevant copyright holder will choose to sue. But in the meantime, I think the legal gray area may be holding back this type of creativity.